Study Guides (283,692)
AUS (7,874)
Deakin (308)
MLL217 (18)
Final

MLL217 Study Guide - Final Guide: The Seller, Executive Car, Tobacco Institute
Premium

19 Pages
89 Views
Fall 2018

Department
Business and Law
Course Code
MLL217
Professor
Sharon Erbacher
Study Guide
Final

This preview shows pages 1-3. Sign up to view the full 19 pages of the document.
Specifically Prohibited False or Misleading Representations
Preliminary points
Provisions in Part 3-1 of the ACL prohibit specific false representations or other
unfair selling practices.
A breach of these sections gives rise to civil liability
Replicated as criminal offence provisions in Part 4-1
Governed under Criminal Code Act 1995 (Cth)
Can be pleaded in the alternative to Section 18 in a civil claim
Financial services dealt with under ASIC Act
Civil sanctions and stand alone
Relevant provisions: ss 29 - 34, 47, 48
Often pleaded in the alternative to s 18
ACCC can seek remedies - Topic 9
Public remedies
Private individuals can seek all civil remedies - Topic 10
Main significance of Part 3-1:
Some remedies available to the ACCC (Topic 9) are only available for a
contravention of Part 3-1, not s 18, e.g. civil pecuniary penalties
Part 3-1 provisions (but not s 18) also reproduced as criminal provisions in
Part 4-1 criminal penalties available
Section 29
Preconditions to Liability
Section 29 prohibits a corporation acting in trade or commerce from making false
and misleading representations on certain matters in connection with the supply, or
possible supply, of goods or services, or the promotion of goods or services.
The corresponding criminal liability provision is s 151
Mens Rea
It is unnecessary to prove a guilty mind; being, that the corporation knew the
representation was false or was reckless as to the falsity of the representation
Intention, knowledge, recklessness
The criminal provision provides that the offence is one of strict liability
For the meaning of strict liability, see Section 6.1 Criminal Code
(1) If a law that creates an offence provides that the offence is an offence of
strict liability:
(a) there are no fault elements for any of the physical elements
of the offence; and
find more resources at oneclass.com
find more resources at oneclass.com
(b) the defence of mistake of fact under section 9.2 is available.
(2) If a law that creates an offence provides that strict liability applies
to a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 9.2 is available
in relation to that physical element.
(3) The existence of strict liability does not make any other defence
unavailable.
s 6.2 absolute liability
same as s 6.1
Persons Liable
All those associated with the representation are prima facie liable, but note s 38
The effect of s 38 is to provide an exemption to information providers with respect to
the publication of material that would otherwise be false or misleading
The defence of relaying information would apply to Section 29
The respondent will have a defence if it can establish that it made it
clear that it was not the source of the information and that it had no
knowledge of the truth or otherwise of that information: Saints Gallery
Pty Ltd v Plummer , Butcher
Definitions of Terms
The terms goods and services are both defined very broadly in Section 2(1) as
follows:
"Goods" includes:
(a) ships, aircraft and other vehicles;
(b) animals, including fish;
(c) minerals, trees and crops, whether on, under or attached to land or not; &
(d) gas and electricity
(e) computer software
(f) second hand goods
(g) any component part of, or accessory to goods.
"Services" includes any rights (including rights in relation to, and interests in, real or
personal property), benefits, privileges or facilities that are, or are to be, provided,
granted or conferred in trade or commerce.
(a) a contract for or in relation to:
(i) the performance of work (including work of a professional nature), whether
with or without the supply of goods;
(ii) the provision of, or the use or enjoyment of facilities for, amusement,
entertainment, recreation or instruction; or
find more resources at oneclass.com
find more resources at oneclass.com
(iii) the conferring of rights, benefits or privileges for which remuneration is
payable in the form of a royalty, tribute, levy or similar exaction;
(b) a contract of insurance;
(c) a contract between a banker and a customer of the banker entered into in the
course of the carrying on by the banker of the business of banking; or
(d) any contract for or in relation to the lending of moneys,
but does not include rights or benefits being the supply of goods or the performance
of work under a contract of service.
Note that the definition of services excludes rights or benefits to be provided under
an employment contract
These are specifically dealt with in s 31.
The term supply is also defined broadly in s 2(1) to include supply by way of sale,
exchange, lease, hire or hire purchase.
Section 29(a) and (b) particular standard, quality, value, grade, etc.
Section 29(1)(a) prohibits a person from falsely representing that goods are of a
particular standard, quality, value, grade, composition, style or model or have had a
particular history or particular previous use.
Section 29(1)(b) prohibits a person from falsely representing that services are of a
particular standard, quality, value or grade.
Particular standard
A representation that goods are of a particular standard is a representation that the
goods comply with an indicated or certain standard:
Gardam v George Wills & Co Ltd (1988)
A standard is an ascertained or definite degree of quality
Section 29(1)(a) applies where the respondent has represented that the goods have
reached a particular benchmark that is used to judge the quality of that type of
product.
P. 349 of text
Hartnell v Sharp
Microwaves had not been tested or approved in the way that they had
represented
A representation that a product complies with a standard promulgated by an official
body such as the Standards Association of Australia will contravene this section, but
the operation of Section 29(1)(a) is not restricted to standards that have been
officially promulgated by government authorities.
Section 29(1)(a) will be contravened where the respondent falsely represents
compliance with a standard that has come to be generally accepted within an
industry for that type of product:
find more resources at oneclass.com
find more resources at oneclass.com

Loved by over 2.2 million students

Over 90% improved by at least one letter grade.

Leah — University of Toronto

OneClass has been such a huge help in my studies at UofT especially since I am a transfer student. OneClass is the study buddy I never had before and definitely gives me the extra push to get from a B to an A!

Leah — University of Toronto
Saarim — University of Michigan

Balancing social life With academics can be difficult, that is why I'm so glad that OneClass is out there where I can find the top notes for all of my classes. Now I can be the all-star student I want to be.

Saarim — University of Michigan
Jenna — University of Wisconsin

As a college student living on a college budget, I love how easy it is to earn gift cards just by submitting my notes.

Jenna — University of Wisconsin
Anne — University of California

OneClass has allowed me to catch up with my most difficult course! #lifesaver

Anne — University of California
Description
Specifically Prohibited False or Misleading Representations Preliminary points Provisions in Part 31 of the ACL prohibit specific false representations or other unfair selling practices. A breach of these sections gives rise to civil liability Replicated as criminal offence provisions in Part 41 Governed under Criminal Code Act 1995 (Cth) Can be pleaded in the alternative to Section 18 in a civil claim Financial services dealt with under ASIC Act Civil sanctions and stand alone Relevant provisions: ss 29 34, 47, 48 Often pleaded in the alternative to s 18 ACCC can seek remedies Topic 9 Public remedies Private individuals can seek all civil remedies Topic 10 Main significance of Part 31: Some remedies available to the ACCC (Topic 9) are only available for a contravention of Part 31, not s 18, e.g. civil pecuniary penalties Part 31 provisions (but not s 18) also reproduced as criminal provisions in Part 41 criminal penalties available Section 29 Preconditions to Liability Section 29 prohibits a corporation acting in trade or commerce from making false and misleading representations on certain matters in connection with the supply, or possible supply, of goods or services, or the promotion of goods or services. The corresponding criminal liability provision is s 151 Mens Rea It is unnecessary to prove a guilty mind; being, that the corporation knew the representation was false or was reckless as to the falsity of the representation Intention, knowledge, recklessness The criminal provision provides that the offence is one of strict liability For the meaning of strict liability, see Section 6.1 Criminal Code (1) If a law that creates an offence provides that the offence is an offence of strict liability: (a) there are no fault elements for any of the physical elements of the offence; and
More Less
Unlock Document
Start your 2 week free trial

Only pages 1-3 are available for preview. Some parts have been intentionally blurred.

Unlock Document
Start your 2 week free trial
You're Reading a Preview

Unlock to view full version

Unlock Document
Start your 2 week free trial

Share with your friends

Get 2 friends to sign-up for a free trial as well, and get an additional free week

Next

You've reached the limit of 4 previews this month

Create an account for unlimited previews.

Already have an account?

Log In


OR

Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


OR

By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.


Submit